TXO Production Corp. v. Stanton

REIF, Judge.

The sole issue presented is whether a landowner can recover attorney fees in a proceeding under the Surface Damages Act, 52 O.S.1991 § 318.2 through 318.9, when the jury verdict exceeds the court-appointed appraisers’ assessment by ten percent or more. In the proceeding below, the jury verdict of $22,000 was just over three times the appraisers’ damage assessment of $6,850, and the trial court granted landowner an attorney fee of $15,000. Plaintiff oil and gas developer does not dispute that this was a reasonable attorney fee, but contends that there is no authority to award an attorney fee in cases such as this.

Plaintiff oil and gas developer points out that the only provision in the Surface Damages Act that addresses attorney fees is § 318.5(F). This section provides that costs and attorney fees shall be assessed against a party demanding a jury trial when the party fails to recover a verdict more favorable than the award of appraisers. Landowner acknowledges the limited application of § 318.5(F), but argues that attorney fees can also be awarded a landowner in cases such as this pursuant to 66 O.S.1991 § 55(D) of the railroad condemnation procedure. Landowner relies on the directive in § 318.5(F) that the trial of surface damage proceedings “shall be conducted and judgment entered in the same manner as railroad condemnation cases.”

Both parties cite Andress v. Bowlby, 773 P.2d 1265 (Okla.1989), as support for their respective positions concerning the applicability or inapplicability of 66 O.S.1991 § 55(D) in surface damage cases. However, the Andress case furnishes little guidance, because it involved a request for attorney fees that fell squarely within § 318.-5(F). Andress did not reach the situation presented by the case at bar and must be read as a rejection of applying 66 O.S.1991 § 55(D) in surface damages cases only with respect to recovery of expert fees as part of the “costs” that are otherwise recoverable under § 318.5(F). The holding of Andress is simply that a party who is entitled to attorney fees and costs under the surface damages act can recover only such costs that are generally recoverable by a prevailing party.

The controlling principle in determining whether a statute authorizing attorney fees applies to a particular proceeding is “the underlying nature of the suit.” See Burrows Const. Co. v. Indep. School Dist No. 2, 704 P.2d 1136, 1138 (Okla.1985). “[T]he nature of the action under the surface damages act clearly partakes of the nature of a condemnation action.” Davis Oil Co. v. Cloud, 766 P.2d 1347, 1353 (Okla.1986) (footnote omitted). Accordingly, we hold that the legislature did not intend to restrict the recovery of attorney fees to situations covered by § 318.5(F), but contemplated application of 66 O.S.1991 § 55(D), by virtue of the kindred nature of those actions and the reference to the railroad condemnation statutes in § 318.5(F).

AFFIRMED.

RAPP, P.J., and BRIGHTMIRE, J., concur.